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ELCDismissedNot stated in the judgment (ELC suit filed in Embu in 2011, transferred to Kerugoya in 2013)· [2019] KEELC 1270 (KLR)

Elizabeth Wakarii Njiru v Kamuri Mubuta & 6 others [2019] KEELC 1270 (KLR)

Environment and Land Court
11 October 2019
1,912 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a land case dismissed for delay, ruling the correct remedy was an appeal, not a fresh application.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kerugoya (E. C. Cherono, J) on a Notice of Motion dated 20th March 2019 by the Plaintiff, brought under Order 9 Rule 9 & 10, Order 10 Rule 11, Order 12 Rule 7, Order 22 Rule 22 and Order 51 CPR, Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Article 159 of the Constitution. The Applicant sought leave for new advocates to come on record, stay of a warrant of arrest for non-payment of taxed costs of Kshs. 47,950, setting aside of the dismissal of her suit, and reinstatement for hearing. Her suit, a land dispute filed in Embu in 2011 and transferred to Kerugoya, had been dismissed for want of prosecution on 13th June 2018 after she failed to comply with conditional orders of 20th December 2017 (substitution of a deceased 1st Defendant, fixing pre-trial and payment of costs). The court found the Applicant was aware of the dismissal application, having sworn a replying affidavit opposing it, and held her sworn claim of ignorance to be dishonest. It further held that Order 12 Rule 7 applies only to Order 12 dismissals and that Order 17 dismissals, made after inter-parties hearing, have no window for setting aside; the remedy was appeal. The inordinate unexplained delay of over a year and non-compliance with the conditional orders were fatal. The application was dismissed with costs.

Key legal issues

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01

Availability of a remedy to set aside a dismissal under Order 17 CPR

Holding

No such remedy exists under Order 12 Rule 7; the recourse is appeal

Reasoning

The court held that Order 12 Rule 7 applies only to Order 12 dismissals. Dismissals for want of prosecution under Order 17 contemplate that parties were heard before dismissal, leaving no window for setting aside; the Applicant's proper remedy was an appeal against the 20/12/2017 order.

p. 3
02

Credibility of the Applicant's claim of ignorance of the dismissal

Holding

Rejected as dishonest

Reasoning

The Applicant swore a replying affidavit opposing the dismissal application and her advocate filed a further affidavit, yet claimed not to know of the dismissal until served with a Notice to Show Cause. The court found she must have enquired from her advocate or attended the court, and that the application was brought after an inordinate, unexplained delay of over a year.

p. 3
03

Effect of non-compliance with conditional dismissal orders

Holding

The Applicant failed to comply with the 20/12/2017 conditions and never sought extension of time; the court will not revisit its own orders

Reasoning

The 20/12/2017 ruling granted conditional saving terms: substitution of the 1st Defendant, fixing pre-trial, and payment of costs. The Applicant neither complied nor sought extension of time, and instead asked the court to set aside its own orders, which the court refused.

p. 3

Legal principles established

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  • Order 12 Rule 7 CPR is available only to suits dismissed under Order 12 and provides no remedy for suits dismissed for want of prosecution under Order 17, particularly where parties were heard before dismissal

Court orders

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  1. 1.The application dated 20th March, 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rules 9 & 10
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 17 Rules 2(1) and (3)
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 51 Rules 1, 3, 4 & 10
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(e)
  • Constitution of Kenya, 2010Article 159

Cases cited (4)

  • Maritim Vs Manywele Korgoren & Another
    (2016) eKLR
  • Cecilia Wanja Waweru Vs Jackson Wainaina Muiruri
    (2014) eKLR
  • Richard Nchapai Leiyanguu Vs IEBC & 2 Others
    (2014) eKLR
  • Elizabeth Wangechi Mwai Vs Jamleck Mwangi Njoka & 3 Others
    (2019) eKLR
Jurisdiction invoked
Order 9 Rule 9 & 10, Order 10 Rule 11, Order 12 Rule 7, Order 22 Rule 22, Order 51 Rules 1, 3, 4 & 10 CPR; Sections 1A, 1B, 3, 3A and 63(e) CPA; Article 159 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Elizabeth Wakarii Njiru v Kamuri Mubuta & 6 others [2019] KEELC 1270 (KLR)", Case Analysis (2019). Not stated in the judgment (ELC suit filed in Embu in 2011, transferred to Kerugoya in 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1270/eng@2019-10-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.